### *The HONORABLE JAMES M. BURNS, United States

District Judge for the District of Oregon, sitting by designation. _____________ No. 95-2918EM

_____________ Andrew W. Six, * * Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Paul K. Delo, * * Appellee. *

_____________ Submitted: April 8, 1996 Filed: August 27, 1996

_____________ Before McMILLIAN and FAGG, Circuit Judges, and BURNS, District * Judge.

_____________ FAGG, Circuit Judge.

On Ap ril 10, 1987, Andrew W. Six and his uncle, Donald Petary , terrorized a family i n Ottumwa, Iowa. Six and Petary went to the home of Don and Stella Allen and their daughters, Christine, who was seventeen, an d Kathy, who was twelve. Both girls were special education students. Six and Petary said they were interested in purchasing the family's truck , which the family was selling to finance Don's open heart surgery. Stella agreed to accompany Six and Petary on a test drive. Six drove the truck onto a gravel road and stopped. While Six held Stella, Petary wrapped duc t tape around her hands. They then returned to the Allen home, where Don wa s waiting outside. Holding butcher knives to the Allens' throats, Six and Petary forced the couple back inside their home.

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Six taped Don's hands and mouth, and took wallets from Stella and Don

. Petary fondled Kathy, and Six raped Christine, who was obviously pregnant. At Six's direction, Petary took Kathy and Christine outside and put them in side his car. Six tried to force Stella and Don into the truck a t knifepoint, but Don started to run away. Six then slashed Stella's throat , infl icting serious injuries, and she fell to the ground. Seeing he r father's flight, Christine escaped from the car, but Kathy, who was trappe d next to Petary, couldnot. After Six jumped into the car, Six and Petary sped off with Kathy, heading south. Three days later, Kathy Allen's body was found in a ditch in Missouri. She had bled to death there after being stabbed in the neck.

At Six's state trial for Kathy's murder, Don, Stella, and Christine Allen testified about the actions of Six and Petary on the evening Kathy
was k idnapped. Stella testified Six had slit her throat and Christin e testified Six had raped her. Six did not testify during the guilt o r penalt yphases, but his attorneys suggested Six was under Petary' s influence and Petary had killed Kathy. During the penalty phase, seve n
mem bers of Six's family testified Six is a good person. Six's mothe r testified Petary had abused both his own childre n and Six as a child. The jury found Six guilty of first-degree murder, bu t could not decide whether Six should be sentenced to death or life imprisonment.

The court then undertook Six's sentencing under Mo. Rev. Stat

. § 565.030.4 (1986) and found beyond a reasonable doubt the existence o f three statutory aggravating circumstances: Six murdered Kathy Allen t o avoid arrest, her murder was committed during a kidnapping, and she wa s killed because of her status as a potential witness in her kidnapping. Se e id. § 5 65.032.2(10)-(12). As an additional, nonstatutory aggravatin g circumstance, the court found Six had raped Christine Allen. The cour t also f ound the following mitigating circumstances existed: Six had n o significant criminal history, see id. § 565.032.3(1); he confessed to law

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enforcement officers; he was a good son, brother, and family member; and he had been abused as a child. The court decided the mitigatin g circums tances did not outweigh the aggravating circumstances, and th e aggr avating circumstances were sufficient to warrant imposition of th e death penalty.

Six appea led his conviction and sentence, and the denial of hi s motion for postconvic tion relief under Missouri Supreme Court Rule 29.15. The Missouri Supreme Court consolidated Six's ap peals and affirmed. State
v. Six , 805 S.W.2d 159, 173 (Mo.) (en banc), cert. denied , 502 U.S. 87 1 (1991). S ix filed a motion to recall the mandate and a state habea s pet ition under Missouri Supreme Court Rule 91, and the Missouri Suprem e Court summarily denied the motions. Six then filed this federal habea s petition and the dist rict court denied relief. Six v. Delo , 885 F. Supp. 1265, 1286 (E.D. Mo. 1995). Six appeals. We affirm.

I.

Six c ontends he was denied effective assistance of counsel at hi s trial's penalty phase. To succeed on an ineffec tive assistance claim, Six must s how his attorneys' performance was deficient and the deficien t perfo rmance prejudiced him. Sidebottom v. Delo , 46 F.3d 744, 752 (8t h Cir.), cert. denied , 116 S. Ct. 144 (1995).

Six first challenges his trial attorneys' failure to obtain a neurop sychological evaluation of Six and to present the results a s mitigating evidence during the penalty phase. This failure was no t
co nstitutionallydeficient because Six's trial attorneys conducted a
reas onable investigation of Six's mental status. Id. The attorney s reviewed psychiatric evaluations that had been prepared for Six's earlier federal trial for Kathy's kidnapping. The federal evaluations suggested Six was under duress and had below average intelligence. The attorneys ha d
a p sychiatrist, Dr. A.E. Daniel, perform a thorough examination of Six

. Dr. Daniel

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conducted a psychiatric interview of Six for about three hours and reviewe d documents provided by Six's attorneys, including a synopsis of the case an d another doctor's evaluation. Dr. Daniel evaluated both Six's competency to stand trial and his mental status at the time of the offense. Dr

. Daniel' s report stated Six had a history of a disorganized childhood , hyperactivity, deafness, and depression. The report concluded Six suffere d from drug and alcohol abuse and had a personalit y disorder with antisocial features. In Dr. Daniel's view, Six was competent to stand trial, wa s using alcohol and drugs at the time of the offense, and was under duress because of Petary's influence.
According to Six, Dr. Daniel's repor t alerted Six's attorneys to the need for a full neuropsychological evaluation like the one Dr. Richar d Wetzel conducted after the trial. Dr. Wetzel co ncluded Six had mild brain dysfun ction that hampered his ability to control his attention an d behavior, and controlled substance abuse could worsen this dysfunction

. In Dr. Wetzel's opinion, if Six had been using drugs or alcohol heavily fo r at least a week before the offense, Six had moderate neuropsychologica l dy sfunction when he committed the crime. Dr. Wetzel stated thi s dysfunction could have affected Six's ability to premeditate.
Counsel's decision not to further investigate Six's mental stat us was not constitutionally deficient because the decision was reasonable fro m counsel's perspective when the decision was made. Id. at 753-54; O'Neal v. Delo , 44 F.3d 655, 660 (8th Cir.), cert. deni ed , 116 S. Ct. 129 (1995). Dr. Daniel's report did not recommend any further examination and we canno t say h is findings would suggest to a competent lawyer that furthe r evaluation was necessary. See Sidebottom , 46 F.3d at 753-54; O'Neal , 44 F.3d at 660. Further, during the state postconviction hearing, one o f Six's attorneys testified Six's behavior and statements gave counsel n o
reason to question Six's mental faculties. See O'Neal , 44 F.3d at 660

. In deciding not to seek further examination, Six's

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attor neys reasonably relied on Dr. Daniel's report and the lack of an y behavior by Six indic ating an abnormal mental state. Sidebottom , 46 F.3d at 753-54 ; O'Neal , 44 F.3d at 660. In sum, the attorneys' failure t o obt ain a neuropsychological evaluation was not deficient performance

. Sidebottom , 46 F.3d at 753-54; O'Neal , 44 F.3d at 660. Thus, we need not decide whether Six was prejudiced. O'Neal , 44 F.3d at 660 n.6.

Six next attacks his trial attorneys' failure to present othe r mitigating evidence d uring the penalty phase. Six contends his attorneys should have presented evidence that he was treated for hyperactivit y beginning in preschool, was a neglected child who grew up in a seriously dysfunctional home monitored by social services agencies, and had a hearin g loss that was untreated for three years in elementary school.
Six's trial attorneys learned of thi s additional mitigating evidence during the investigation, but decided the evidence was not significan t enoughto be helpful. Although the additional evidence would have bee n relevant during the penalty phase and had some m itigating value, Schneider

v. Del o , 85 F.3d 335, 340 (8th Cir. 1996), counsel's decision not t o present t he evidence was reasonable. Sloan v. Delo , 54 F.3d 1371, 138 4 (8th Cir. 1995) (reviewing the reasonableness of counsel's belief de novo) , cert. denied , 116 S. Ct. 728 (1996). Counsel testified his penalty-phase strategy was to show Six was a human being whom others cared about, and to present evidence of S ix's positive character traits. Counsel decided not to use Dr. Daniel as a witness to prevent the state from using testimony fromanother psychiatrist to whom Six had made "quasi-confessions." The additional mitigating evidence could have been presented in other ways, bu t
counse l reasonably believed the evidence was not significant enough t o build sympathy for Six because of the horrible facts of the case.
Even if counsel's decision not to present the evidence was

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unreas onable, we cannot say the additional evidence probably would hav e made a difference at sentencing. Schneider , 85 F.3d at 340-41 (defendant not pr ejudiced by failure to present mitigating evidence of attentio n deficit disorder, ins omnia, and social history). It was apparent Six had
a hearing problem because counsel had Six remove and adjust his hearing ai d during the trial. Six's mother testified he had been abused as a child, and the judge credited the testimony in finding the mitigating circumstanc e that Si x had been abused. We do not believe the additional evidence o f neglect and hyperactivity would have changed the sentencing equation.

Six als o challenges trial counsel's failure to request jur y instructions on two statutory mitigating circumstances: Six acted unde r extreme duress or the substantial domination of Petary, Mo. Rev. Stat

. § 565.032.3(5), and S ix was merely an accomplice and minor participant in the murder , id. § 565.032.3(4). Six failed to raise this ineffectiv e assistan ce claim in the state courts, so the claim is procedurall y defaulted. Nave v. Delo , 62 F.3d 1024, 1030 (8th Cir. 1995), cert. denied , 116 S. Ct. 1837 (1996). To excuse his default, Six contends Missour i inconsistently applie d Missouri Supreme Court Rule 29.15(b), which at the time of Six's state p roceedings, required defendants to raise ineffective assistance claims within ninety days from the trial transcript's filing. See Williams v. Lockhart , 873 F.2d 1129, 1131-32 (8th Cir.), cert. denied , 493 U.S. 942 (1989). Six points out that in 1996 the Missouri Suprem e Court relaxed the time requirement in Rule 29.15(b). Six cites no example s of inconsistent application of the earlier ninety-day rule, however. Thus , the rule sufficiently bars habeas review. See W illiams , 873 F.2d at 1132.

II.

Six argue s the Missouri death penalty scheme requires a jury t o decide a defendant's eligibility for death by finding the existence of at least one statutory aggravating circumstance before

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a judge can impose a death sentence. Six argues that because the jury was not polled at his trial, we cannot tell whether the jury made the necessar y find ing, and thus, the imposition of capital punishment by the cour t instead of the jury v iolates his due process and equal protection rights.

Assuming Six is correct about the Mi ssouri statute, the facts do not suppo rt Six's argument. To deadlock on punishment, the jury must hav e found at least one statutory aggravating circums tance existed. Missouri's deathpenalty statute provides the trier must direct a sentence of lif e imprisonment if the trier does not find at least one statutory aggravating circumstance. Mo. Rev. Stat. § 565.030.4(1) (19 86). The jury must impose a sentence of life imprisonment if the jury does not unanimously agree the
same aggravating circumstance exists. State v. Griffin , 756 S.W.2d 475, 488 (Mo. 1988) (en banc), cert. denied , 490 U.S. 1113 (1989). The jury wa s instructed to this effect, see inst. no. 16, and we must assume the jury followed the instruct ion. Because the jury in this case did not impose a life sentence, the jury must have unanimously found the existence of a t least one of the five submitted statutory aggravating circumstances, and thus, the jury found Six was eligible for the de ath penalty. Griffin , 756 S.W.2 d at 488. Contrary to Six's assertion, there is no "unauthorize d presumption of death eligibility" for defendants whose juries deadlock on punishment, and thus, Six was not denied equal protection.
Besides, the Missouri death penalty scheme permits the judge to find the ne cessary aggravating circumstance when a jury cannot decide o n punishment. Once the jury returned its verdict stating it was unable to agree on punishment, the judge became the senten cer and it was the judge's duty to find the facts and decide the sentence following the same procedur e in § 565.030.4(4) ini tially undertaken by the jury. State v. Richardson , 923 S.W.2d 301, 323-2 4 (Mo. 1996) (en banc). To the extent the judge may have found aggravating circumstances the jury did not find, the Missouri

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death sentencing sche me permits it. As Six recognizes, there is no state
or federal constitutional right to have a jury make the findings. Moore v. Clarke , 904 F.2d 1226, 1233 (8th Cir. 1990), cert. denied , 504 U.S. 930 (1992); Griffin , 756 S.W.2d at 487. The procedure followed in this case is permitted under the Missouri statute. Thus, Six's due process rights were not violated. Griffin , 756 S.W.2d at 488.

In another argument tied to Missouri's statute, Six contends tria l counsel was ineffective in failing to request a jury poll after the jury returne d the verdict form indicating the jury's inability to agree o n punish ment. Six argues we can consider this claim even though it i s proced urallydefaulted because our failure to consider the claim woul d result in a fundamental miscarriage of justice. According to Six, the lac k of a jur y poll means we cannot tell whether the jury found a statutor y agg ravating circumstance existed, and thus, Six is not eligible for th e deathpenalty and is actually innocent of his death sentence. See Nave , 62 F.3d at 1033; Pollard v. Delo , 28 F.3d 887, 888 (8th Cir.), cert
. denied , 115 S. Ct. 51 8 (1994); Sawyer v. Whitley , 112 S. Ct. 2514, 2523 & n.15 (1992). As we just explained, however, the jury necessarily found Si x eligible for the death penalty, because to deadlock on punishment, the jur y must h ave found the existence of a statutory aggravating circumstance

. Griffin , 756 S.W.2d at 488 (jury need not submit aggravating circumstances it has found to court in writing because jury de adlocked on punishment has necessarilyfound at least one aggravating circumstance). In any event, the judge found the existence of three statutory aggravating circumstances making Six eligible for the death penalty, and the Missouri statute permit s the judge to make the necessary findings when the jury deadlocks o n punishment.

III.
Six next contends the mitigating circumstance instruction

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required the jury to find statutory mitigating circumstances unanimously, in violation of his E ighth Amendment rights. Our earlier cases foreclose this cont ention. Griffin v. Delo , 33 F.3d 895, 905-06 (8th Cir. 1994) , cert. denied , 115 S. Ct. 1981 (1995); Murray v. Delo , 34 F.3d 1367, 1381 (8th Cir. 1994), cert . denied , 115 S. Ct. 2567 (1995); Parkus v. Delo , 33 F.3d 933, 941-42 (8th Cir. 1994).

IV.
Six next asserts his appellate attorney ineffectively represent ed him by failing to raise a rguments challenging three remarks by the prosecutor during closing argument at the trial's penalty phase. Although tria l counsel did not object to the comments, Six asserts appellate counse l sho uld have challenged the comments for the first time on appeal. T o
succee d on this ineffective assistance claim, Six must show "reasonabl e professional performance [by appellate counsel] could not have omitted the prosecutor's statemen ts from review [for] plain error." Pollard , 28 F.3d at 889; see Sidebottom , 46 F.3d at 759.
During his closing argument at the penalty phase, the prosecuto r said: You've watched [Six] during this week, ladies and gentlemen , what remorse has he shown for the death of Kathy Allen? What remorse has he shown for cutting the throat of Stella Allen ? What remorse has he shown for raping [Christine Allen]? What remorse has he shown? And now . . . they have the guts to come here and to ask you for mercy. . . . And you've alr eady decided . . . whether or not he's guilty of the death. Don 't be misled about who actually wielded the knife blow. I think we al l know probably in our hearts who did it, but you've alread y det ermined criminal liability for that. And don't b e dissuaded, don't be diss uaded. What remorse has he shown? . .

. . Let's talk now, folks, about courage and let's talk about cowardice. Because this man and his uncle are cowards . . . . And he sits before you today, a rapist, a killer, a thief and a coward--and a coward. An attorney speaks eloquen tly for him, but it doesn't

### -10- make him any less of a coward. . . . Have the courage, ladies and gentlemen, the courage of your convictions to send thi s message, that if you invade our homes and you rape our children and rob our families and you steal our babies from our bosoms and you take them and you kill them, that if you do thos e things . . . it will cost you your life.

We are not convinced the prosecutor's comments were plain error

. Sidebottom , 46 F.3d at 759. Six contends the prosecutor's remarks about Six's failure to show remorse were comments on Six's failure to testify. Unlike the situation in Miller v. Lockhart , 65 F.3d 676, 684 (8th Cir

. 1995), the prosecutor here did not directly argue Six's failure to take th e stand and ask for mercy during the penalty phase showed Six did not care about what he had done. Instead, the comments were indirect. A prosecu tor's indirect comments about a defendant's failure to testif y violate the Fifth Amendment privilege against self-incrimination if th e comments show the prosecutor intended to call at tention to the defendant's failure t o testify, or if the jury would naturally take the comments a s highlighting the defe ndant's failure to testify. Parkus , 33 F.3d at 940- 41; Pollard , 28 F.3d at 890.

Because the comments about remorse w ere prefaced with a reference to th e jury's observance of Six during the trial, we cannot say th e prosec utor's comments about remorse were intended as anything more tha n remarks on Six's general demeanor in the courtro om, or that the jury would view the comments as anything more. See Gaskins v. McKellar , 916 F.2d 941 , 951 (4t h Cir. 1990) (prosecutor's comment that defendant had shown n o remorse was not improper comment on failure to t estify), cert. denied , 500 U.S. 961 (1991). Con trary to Six's selective quotation, the prosecutor's iso lated statement that Six's attorney spoke eloquently for Six was no t tied to the prosecutor's remarks about remorse, but was made in the contex t of a later discussion about cowardice.
We reject Six's assertion that the prosecutor suggested he had

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special knowledge about the offense by stating everyone knew in thei r hearts which man had committed the murder. See United States v. Lahey , 55 F.3d 1289, 1298-99 (7 th Cir. 1995) (prosecutor's use of phrase "we know .

. . " did not suggest government knew of additional evidence). Th e prosecutor did not imply he possessed undisclosed information or express his personal opinion. Cf. Newlon v. Armontrout , 885 F.2d 1328, 1336 (8th Ci r. 1989) (prosecutor's statement of personal belief that defendan t deserved death penalty more than anyone else in ten years was improper), cert. denied , 497 U.S. 1038 (1990). Similarly, the prosecutor did not mak e a personal appeal to the jury's parental respons ibilities to protect their children from crime, but was speaking figuratively about society as a whol e and was asking the jury to send a message that anyone who rapes, robs , kidnaps, and kills ch ildren will be sentenced to death. Cf. id. at 1336, 1342 (prosecutor's query, "If [the defendant] was going to harm your child , wou ld you kill him?" was improper personalized analogy to jurors' self

defense of their own children).

Even if the comments were improper, the remarks do not violate du e process unless the remarks fatally infected the entire penalty phase and rendered it fundamentally unfair. See Pollard , 28 F.3d at 890. Here, the prosecutor's remarks were not egregious or pervasive enough to render the result of the penalty phase unreliable. Parkus , 33 F.3d at 941; Pollard , 28 F .3d at 890-91. Thus, appellate counsel was not constitutionall y ineffect ive for failing to make plain error arguments based on th e comments. Pollard , 28 F.3d at 890.

V.
Six asserts his Fourteenth Amendment rights were violated becau se the sta te court trial judge was biased. Because Six failed to raise thi s assertion in state court, the claim is procedurally defaulted. Nave , 62 F.3d at 1030. As cause for his default, Six

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asserts th e judge failed to disclose facts providing a basis to doub t impartiality. Based on Six's examination of the state judge at the state postco nviction hearing, however, the district court found Six had som e knowl edge of the bias claim's factual basis before the hearing, 885 F

. Supp. at 1271, so Six could have raised the claim in his stat e postconviction motion . We agree with this assessment. Even if Six could show cause, he could not show prejudice because his bias claim lacks merit

. See id. at 1271-72. Thus, Six is not entitled to an evidentiary hearing to show cause and pre judice for the default. Keeney v. Tamayo-Reyes , 504 U.S. 1, 11 (1992).

VI.

Six also contends his Fourteenth Amendment rights were violate d because the trial court did not submit instructions on second-degree felony murder as a lesser-in cluded offense of first-degree murder. We disagree. The Cons titution does not entitle a capital murder defendant to a n instruction on every lesser-included noncapital offense. Schad v. Arizona , 501 U.S. 624, 627 (1991). The court need only give the jury a supported alt ernative to the all-or-nothing choice of capital conviction o r acquitt al. Id. at 647; Driscoll v. Delo , 71 F.3d 701, 714-15 (8th Cir

. 1995), pet. for cert. filed , 64 U.S.L.W. 3765 (M ay 1, 1996) (No. 95-1779). Here, the jury was in structed on conventional second-degree murder, which the evidence supported. See Schad , 501 U.S. at 648. Because the jury was give n the option of convicting Six of a lesser-included offense wit h support in the evidence, the failure to instruct the jury on second-degree felony murder did not violate Six's Fourteenth Amendment rights. Driscoll , 71 F.3d at 714-15.

VII.
Finally, Six contends his due process rights were violated becaus e the Missouri Supreme Court arbitrarily denied his state-

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given right to proportionality review of his death sentence. Mo. Rev

. Stat. § 565.035 (1986). Six explains that when the court reviewed Six's senten ce, the court database used for sentencing comparisons did no t include 189 cases in which life sentences were imposed. Id. § 565.035.6 (directing Missouri Supreme Court to compile database of all cases in whic h sentences imposed wer e death or life imprisonment without the possibility of parole). Six cites some of the omitted publi shed cases and argues they
are mor e similar to Six's case than the four capital cases cited by th e Missouri Supreme Court in upholding Six's death sentence.

We conclu de Six was not arbitrarily denied his state-provided right to proportionality review. Williams v. Delo , 82 F.3d 781, 784-85 (8th Cir

. 1996); s ee Foster v. Delo , 39 F.3d 873, 882 (8th Cir. 1994) (en banc) , cert. denied , 115 S. Ct. 1719 (1995). The Misso uri Supreme Court reviewed Six's d eath sentence and concluded the sentence was "not excessive o r disproportionate to the penalties imposed in similar cases, considering th e crime, the strength of the evidence and the defe ndant." State v. Six , 805 S.W.2d at 169; see Mo. Rev. Stat. § 565.035.3(3). The Constitution does not requi re us to look behind that conclusion to consider the manner i n whichthe court conducted its review or whether the court misinterpreted the Missouri statute. LaRette v. Delo , 44 F.3d 681, 688 (8th Cir.), cert. denied , 116 S. Ct. 246 (1995); Williams , 82 F.3d at 785.
We affirm the denial of Six's federal habeas petition.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.